California may be unique in unconstitutionally allowing its attorney guild to enforce its self-adjudicated costs as a judgment, but the universal state-bar practice of charging costs to respondents (regardless of how the state bars can collect them) derives from changes in the criminal law that, despite their legality, damage the system’s integrity: policies of victim restitution and social restitution. The critique of social-restitutionary state-bar costs begins with its prototype, victim restitution in criminal law, of which there has accumulated much more legal and societal experience.
Victim restitution in criminal law
The award of state-bar “costs” (in most jurisdictions) is sequel to the practice, itself growing out of victim restitution, of appropriating from criminal defendants an array of “imaginative fees.” (HT for phrase to Rosenthal and Weissman, below.) Wildly popular (despite its hollowness, where only 3% of restitution fines are paid), victim restitution led inexorably to charging convicted defendants for every manner of administrative expense (such as their room and board). If the criminal must make restitution to the designated victim, why shouldn’t he compensate society, too? Once the policy became acceptable, the rush to solve budgetary shortfalls by taxing criminal defendants became irresistible. (Former Chief Justice George in California promoted such fundraising.) The first wave started in the 1970s and culminated in the 1980s in the widespread use of restitution in an amount apportioned to the defendant’s means. The second wave occurred in the 1980s and 1990s, when full restitution widely became mandatory and numerous fees were imposed.
This was the Reaganite “victims’ rights” movement, which included other disruptions—such as victim-plight testimony during sentencing—of reasoned jurisprudence. “Victims’ rights” was largely a sop to victims outraged by plea bargaining, which flowered in the 1970s after the U.S. Supreme Court, in Brady v. United States (1970), legitimized it. Defendants were to be charged the costs of their crimes to their victims, who were also allowed to influence sentencing by diatribe.
Restitution and fees are lauded despite the lack of evidence of their rehabilitative effectiveness and their scorn for one of criminology’s established principles: crime is born of poverty. Eighty-five percent of criminal convicts are indigent. Restitution in criminal law purports to teach the lesson that criminals are personally responsible for their crimes, whereas, in fact, crime is fundamentally a product of social conditions. Society cannot teach criminals to accept rather than deny responsibility when, in the very process of this attempted indoctrination, society denies its own responsibility for causing crime.
Restitution expresses and reinforces the ideological denial of poverty’s fundamental role in crime. The fetishism of “personal responsibility” makes it easy to treat the primary victims of harsh economic inequalities as if they were the ones who should provide restitution. This ideological denial helps explain the tolerance of the American public for mass incarceration.
The availability of compensation for the victims of criminal acts is a form of social insurance. Restitution (3% recovery rate) is insufficient.
It is also socially unjust: victim restitution amounts to a highly regressive tax. This became completely obvious with the 1996 federal law (and similar measures in most jurisdictions, including Penal Code § 1202.4 in California), which required judges to order full restitution regardless of the criminal defendant’s ability to pay, but regressive taxation is inherent in restitution in criminal law, since the overwhelming majority of criminal defendants are indigent. If compensation for targets of crime were treated as a social-insurance issue (as is the European tendency), it would be funded through progressive taxation.
The ultra-individualist complexion of victim restitution helps state actors deny that the development of a sophisticated and nuanced law through courtroom contests is a public good. The numerous “imaginative fees” that the restitutionary mentality spawned amount to a tax on the litigation of criminal allegations. Although “victim rights” was a reaction to universalizing the plea bargain, it has served as its handmaiden by providing another incentive to settle criminal cases before the fees accumulate, at the expense of broadening the corpus of law on which a common-law system depends.
The state-bar ramifications of criminal law’s victim-restitution practices
The “imaginative fees” that restitution spawned in criminal law have been avidly adopted by the state bars, which routinely charge investigation, litigation, and court costs to respondents, including costs pertaining to counts eventuating in acquittal. These “costs” easily run to thousands of dollars, often to over ten thousand—a high price for bar counsel and bar-court judges’ incompetent legal work. They suffer all the demerits of criminal law’s restitution-inspired measures: denial of systemic causes of infractions, regressive taxation, and stunted development of law.
While Bar “costs” are like restitutionary fines in denying the primary role of the system in engendering offenses—whether crimes or ethics’ infractions—they differ in manner. The role of system in legal ethics is not so much to cause infractions but rather to self-servingly define them. (For example, over-prosecuting negligent misappropriation and violation of court orders while disregarding fraud by employers and the sacrifice of client interests to the judiciary’s interests.) Yet, the direct economic causes of ethical infractions shouldn’t be entirely ignored; notably, the state bars have failed to bring cases against law-school administrators who have deceived students about their prospects in law, helping create a cutthroat economic climate.
State Bar “disciplinary costs” fall as a regressive tax on those least able to pay. Indigence may not be an important cause of legal-ethics violations, but once their cases come to issue, many attorneys who face discipline charges are impoverished. The reason is that the filing of a notice of charges is public information, which almost invariably cripples a respondent’s law practice. Until their final hearing, respondents are presumed innocent, yet they are taxed with costs that deter them from upholding their innocence.
Even more than for criminal law, which has enjoyed a long evolution, the disincentive to litigate cases stymies the development of bar law. Bar law remains primitive because of the avoidance of real contention, and bar “costs” are an important mechanism for enforcing legal blandness.
An attorney-discipline system (supposedly) serves the entire profession and, accordingly, should be funded by dues-paying lawyers. As it most serves the most profitable law firms, an ideal bar would tax its members progressively—and certainly wouldn’t extort funds from beleaguered state-bar respondents.
Dickman, M. "Should crime pay: A critical assessment of the Mandatory Victims Restitution Act of 1996." (2009) California Law Review, 97:6(4).